Pitts v. United States

• Court: Court of Appeals for the First Circuit
• Decided: April 8, 1997
• Docket: 96-1410
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1410



                        W. DOUGLAS PITTS AND GLORIA MARTINEZ,



                               Plaintiffs - Appellants,



                                          v.



                          UNITED STATES OF AMERICA, ET AL.,



                               Defendants - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                           and DiClerico,* District Judge.
                                           ______________



                                _____________________



               Lisa  R. Daugherty,  with whom  Thomas E.  Scott and  Davis,
               __________________              ________________      ______

          Scott, Weber & Edwards were on brief for appellants.
          ______________________

               Robert  D.  Kamenshine,  Attorney,  Appellate  Staff,  Civil
               ______________________

          Division,  Department  of Justice,  with  whom  Frank W.  Hunger,
                                                          ________________

          Assistant   Attorney  General,   Guillermo  Gil,   United  States
                                           ______________

          Attorney, and Barbara L.  Herwig, Attorney, Appellate Staff, were
                        __________________

          on brief for appellees.


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                                    April 8, 1997

                                 ____________________

                              
          ____________________



          *  Of the District of New Hampshire, sitting by designation.



TORRUELLA, Chief Judge.   Plaintiffs-appellants    were
                    TORRUELLA, Chief Judge. 
                               ___________



          mistakenly  arrested by  federal drug  enforcement agents  at the



          airport in San Juan, P.R. in  April 1993.  They filed actions for



          tort damages  against four individual federal  agents pursuant to



          Bivens  v.  Six Unknown  Named Agents  of  the Federal  Bureau of
          ______      _____________________________________________________



          Narcotics,  403 U.S.  388 (1971),  and against the  United States
          _________



          under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.    1346(b),



          2671 et seq.  On February  13, 1996, the district court dismissed
               _______



          plaintiffs-appellants' complaint  in its entirety  as time-barred



          under  the  applicable  federal   and  Puerto  Rico  statutes  of



          limitations.  We affirm. 



                                      BACKGROUND
                                      BACKGROUND



                    On  April 21,  1993,  appellants W.  Douglas Pitts  and



          Gloria Mart nez  were approached by defendant  Jefferson Moran, a



          plain-clothed  Drug  Enforcement  Agency ("DEA")  agent,  in  the



          airport in San  Juan and  informed that they  were under  arrest.



          Three  other DEA  agents  surrounded them,  handcuffed them,  and



          transported  them   to  DEA  headquarters.     Only  after  being



          fingerprinted  and  photographed,   appellants  claim,  did   co-



          defendant DEA  agent Edward Hern ndez  inform them of  the reason



          for  their arrest.  Apparently two  witnesses identified Pitts as



          the man who had given them a package of heroin  earlier that day.



          Pitts was questioned and his briefcase was searched; Mart nez was



          allegedly   strip-searched.     Appellants  were   released  from



          detention   approximately  six  hours   after  being  arrested.  



          Appellants'  complaint  alleged  that  they  were  physically and


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verbally abused and sought damages on a number of legal grounds.1



          Because  the issue on appeal is whether the suit was time-barred,



          however, we review the details concerning the timing and contents



          of  communications between  appellants and  governmental agencies



          after the incident just described.



                    The mistaken  arrest occurred on  April 23, 1993.   The



          complaint was filed in district  court on November 23, 1994.   On



          July  19, 1993, however, appellants' counsel sent a letter to the



          DEA stating  appellants' intent  to pursue  a claim  "against the



          United  States" arising  from  the  actions  of DEA  agents,  and



          requesting damages and "an apology from your  office as well as a



          reprimand  of the agents involved."   A response  letter from the



          DEA dated  August 6, 1993  stated that  the appellants' July  19,



          1993  letter did not  satisfy the  procedural requirements  for a



          claim against the United States under the FTCA. 



                    On August  18, 1993, appellants' counsel  sent a second



          letter to the DEA, followed by a third letter on August 30, 1993,



          which  repeated  the  appellants'  intention to  pursue  a  claim



          against the  government, stated that counsel  had been authorized



          to   represent  the  appellants,  and  provided  the  appellants'



          signatures.  The DEA replied to appellants' August 18 letter in a



          letter dated September  9, 1993, stating that appellants' July 19



          and  August 18 letters also failed to satisfy the requirements of



                              
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          1    Plaintiffs'  complaint  alleged:  assault,   battery,  false

          imprisonment,  intentional  infliction  of   emotional  distress,

          invasion  of privacy,  unconstitutional  search and  seizure, and

          negligence.



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a  "claim"  under the  FTCA.   Appellants'  counsel replied  by a



          letter  of September 15, 1993 stating that it was the appellants'



          view that the  August 18  letter did indeed  constitute a  proper



          claim under the FTCA.  Finally, the DEA sent a  letter on January



          4,  1994  denying the  claim against  the  United States  made in



          appellants' July 19, 1993 letter, and noting that the denial "may



          be appealed" to a federal district court within six months.  More



          than six months elapsed between January  4, 1994 and the date the



          complaint was filed, November 23, 1994.2  



                    The  district  court granted  the appellees'  motion to



          dismiss the complaint  as untimely under both  Puerto Rico's one-



          year  statute of  limitations  (with regard  to  the tort  claims



          against  the  officers)  and  the  FTCA's  six-month  statute  of



          limitations  that runs from  the time  of the  final denial  of a



          claim by the pertinent governmental agency.  These letters are at



          the heart of this appeal because the appellants contend: (1) that



          Puerto  Rico's  one-year statute  of limitations  governing their



          Bivens   action  was  tolled   under  the   "extrajudicial  claim
          ______



          exception"  by their letter of August 18, 1993, and did not begin



          running at least until the  Government's denial letter of January



          4, 1994;   and (2) that the requirement under  the FTCA that they



          file suit against the  government within six months of  the final

                              
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          2   In addition, beginning  in November 1993,  the plaintiffs and

          the  DEA exchanged  correspondence regarding  appellants' request

          for the names and identities of the DEA agents involved under the

          Freedom of Information Act,  a series of letters  that culminated

          in a  letter of  April  10, 1995  from the  DEA formally  denying

          appellants' request for information concerning the identities  of

          the unknown agents.



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denial of their  claim does  not render their  November 23,  1994



          complaint time-barred  because the  government's January  4, 1994



          denial letter did not trigger the six-month limitations period.



                                      DISCUSSION
                                      DISCUSSION



          I.   Claims Against the Agents
          I.   Claims Against the Agents



                    Appellants  do not dispute the settled proposition that



          their claims against Mor n, Hern ndez, and  two other unknown DEA



          agents  are   subject  to  Puerto  Rico's   one-year  statute  of



          limitations governing,  inter alia,  personal injury torts.   See
                                  __________                            ___



          P.R. Laws Ann. tit. 31    5298(2) (1991); cf. Ram rez Morales  v.
                                                    ___ _______________



          Rosa Viera,  815 F.2d 2, 4  (1st Cir. 1987).   Rather, they argue
          __________



          that  the period, which would  have barred their  suit from being



          brought after April 21,  1994, was tolled  under the Puerto  Rico



          tolling statute's  extrajudicial claim provision.   See P.R. Laws
                                                              ___



          Ann. tit. 31   5303 (1991).3  Specifically, they argue that under



          the   Puerto  Rico   Supreme   Court's   interpretation  of   the



          extrajudicial claim  provision, their  claim was tolled  from the



          time  of their  August  18,  1993  letter  to  the  DEA  (stating



          appellants' "intent  to submit a claim against  the United States



          government" and requesting  a "reprimand" of the  officers) to at



          least January  4,  1994,  the  date of  the  government's  letter



          purportedly denying the  claim, at which point, under Puerto Rico



          law,  the one-year period would  have been restarted  at zero and



                              
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          3  Section 5303 provides: "Prescription of actions is interrupted

          by their institution before the courts, by extrajudicial claim of

          the creditor,  and by any  act of acknowledgment  of debt by  the

          debtor."



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would have begun to run anew.  See Rodr guez Narv ez v.  Nazario,
                                         ___ _________________     _______



          895 F.2d 38, 45 (1st Cir. 1990).



                    The  problem  with appellants'  argument is  that their



          August 18 letter -- like the other letters they sent to the DEA -



          -  did  not  identify  any  legal  claim against  the  individual



          officers,  and therefore  cannot  be deemed  to  have tolled  the



          statute  of  limitations as  to  the suit  against  the officers.



          Puerto  Rico   Supreme  Court  decisions  applying   the  tolling



          provision  of section  5303 indicate  that one  of the  necessary



          requirements  of  an  extrajudicial  claim for  the  purposes  of



          tolling is the  requirement of "identity."   See Galib-Frangie v.
                                                       ___ _____________



          El Vocero de Puerto Rico, 95 JTS 71 at 922  (P.R. 1995); see also
          ________________________                                 ________



          Kery v. American Airlines, Inc., 931 F. Supp. 947, 951-53 (D.P.R.
          ____    _______________________



          1995) (summarizing  Puerto Rico  Supreme Court interpretation  of



          section 5303).   The  identity requirement  means  that the  same



          right  and the same relief affected by the statute of limitations



          must appear in the extrajudicial claim.  See Nazario, 895 F.2d at
                                                   ___ _______



          44; Kery, 931 F. Supp. at  954.  To satisfy this requirement, the
              ____



          extrajudicial  claim  must be  made  against the  same  debtor or



          passive subject of the right in question, and not against a third



          party.    Nazario,  895 F.2d  at  44  (citing  Velilla v.  Pueblo
                    _______                              _______     ______



          Supermarkets, Inc., 111 P.R.R. 732, 734-35 (P.R. 1981)).    
          __________________



          Appellants' August  18 letter,  addressed to the  associate chief



          counsel of the DEA, states an intent to make a "claim against the



          United   States  government"  and   also  requests   an  official



          "reprimand" of the  officers involved.   It does  not assert  any


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legal  claims  directly  against   the  officers.    The  letter,



          therefore, fails to  satisfy the requirement of  identity for the



          purposes of the extrajudicial claim doctrine.  Appellants, citing



          the Galib-Frangie  decision, argue  that the Puerto  Rico Supreme
              _____________



          Court has  recently ruled  that the extrajudicial  claim doctrine



          should  be applied  liberally.   We  are  not persuaded  by  this



          argument, because  nowhere in  the Galib-Frangie opinion,  or, to
                                             _____________



          our  knowledge, in any other  recent decision of  the Puerto Rico



          Supreme  Court, is  there any  support for  a departure  from the



          well-established rule that  an extrajudicial  claim must  request



          the same type of  relief against the same defendants.4   In fact,



          in Galib-Frangie, the case relied on by the appellants, the court
             _____________



          iterated that  the identity requirement is  a necessary condition



          of an extrajudicial claim under section 5303.   Galib-Frangie, 95
                                                          _____________



          JTS  71 at 922.   Moreover, the learned  commentary on this civil



          code provision suggests that an extrajudicial claim must serve as



          a  notice or demand to the  "passive subject of said right," here



          the  DEA agents.   See Nazario,  895 F.2d at  44 (quoting Spanish
                             ___ _______



          civil  code commentator  Diez Picazo).5   The DEA  agents plainly

                              
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          4  In the  case of Zambrana-Maldonado v. Commonwealth,  92 JTS 12
                             __________________    ____________

          (P.R.  1992), for  example,  the court  stated specifically  that

          extrajudicial  claims must  be read  in their  totality and  in a

          liberal  fashion,  and  yet also  held  that  the  claim must  be

          received by the same debtor of  the right who is the defendant in

          the subsequent lawsuit.  Id. at 9171-74.
                                   ___



          5  According to Diez Picazo:



                    In  principle, claim  stands  for  demand  or

                    notice.   That is: it is an act for which the

                    holder of a substantive right,  addresses the

                    passive subject of said right, demanding that



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could  not  be  apprised  of  a  damages  suit  against  them  as



          individuals by a  letter stating  an intention to  bring a  claim



          against the government.



                    In  the  alternative,  appellants  argue  that  summary



          judgment was improper because a question of  material fact exists



          as  to whether the individual  DEA agents received  copies of, or



          were otherwise informed  of, the  letters.   This argument  fails



          because, even assuming  they received copies of the  letters, the



          content of  the letters would  not put them  on notice as  to the



          possibility of being sued individually for damages.



                    These  considerations  lead  us  to  conclude that  the



          district court  properly applied Puerto  Rico law in  finding the



          suit against the DEA agents to be time-barred.



          II.  The Claim under the FTCA
          II.  The Claim under the FTCA



                    FTCA claimants  must file suit in  federal court within



          six  months of the date on which  the federal agency to which the



          claim  has been addressed mails  notice of final  denial of their



          claim.   See 28 U.S.C.   2401(b).   Here, it is not disputed that
                   ___



          the DEA sent  a letter on January 4, 1994  to appellants' counsel



          stating that,  in response to  appellants' July 19,  1993 letter,



          "[t]o the  extent that this  correspondence can  be construed  as

                              
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                    he adopt  the required conduct.   The  claim,

                    then, is a pretension in a technical sense.



          Nazario, 895 F.2d  at 44 (quoting Diez Picazo).   We note as well
          _______

          that  the commentary  of Diez  Picazo, unfavorable  to appellants

          here,  was cited as an authority regarding the requirements of an

          extrajudicial  claim  in  the Galib-Frangie  decision,  the  very
                                        _____________

          decision appellants  argue harkens a change  in the extrajudicial

          claim doctrine.  See Galib-Frangie, 95 JTS 71 at 923.
                           ___ _____________



                                         -8-



claim  [sic] against the United States of America pursuant to the



          Federal Tort Claims Act  (FTCA), 28 U.S.C.    2671 et seq.,  such
                                                             _______



          claim is denied."  Appellants filed their suit  under the FTCA in



          November 1994, more than  six months after the DEA  denial letter



          was mailed,  and thus their FTCA  claim was properly found  to be



          time-barred.



                    On appeal, two meritless arguments have been proffered.



          The first is that the  January 4 letter cannot be deemed  a final



          denial  because  it  did  not  specifically  address  appellants'



          August 18, 1993 letter.   We find, however, that the  language of



          the letter  was unambiguous  in denying appellants'  claim, which



          was  made in  both the  July  19, 1993  and the  August 18,  1993



          letters.6



                    Second,  appellants  argue  that the  January  4 letter



          failed to  satisfy regulations governing  the content of  an FTCA



          claim denial letter, see 28 C.F.R.    14.9(a), because it did not
                               ___



          state  that the  claimant  may "file  suit"  in a  United  States



          District Court within six months.7  We are unmoved by appellants'



                              
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          6    The August  18  letter was  merely  a follow-up  letter that

          repeated the allegations and  claims made in the July  19 letter,

          and only added the signatures of appellants Pitts and Mart nez.



          7  The regulation  at 28 C.F.R.   14.9(a) provides,  in pertinent

          part:



                    The notification of final  denial . . . shall

                    include a statement that, if  the claimant is

                    dissatisfied  with the agency  action, he may

                    file  suit  in an  appropriate  U.S. District

                    Court  not later  than six  months after  the

                    date of mailing of the notification.


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argument  that the  DEA's failure  to use  the words  "file suit"



          created any confusion.   We  find that the  DEA's statement  that



          "[t]his  denial may be appealed to  the appropriate United States



          District  Court within  six months  of this  letter,"   while not



          using  the  words  "may  file  suit,"  adequately  satisfied  the



          requirements of regulation 14.9(a) by giving sufficient notice of



          the  six-month limitations  period applicable  to their  right to



          file suit in district court.  Cf.  Hatchell v. United States, 776
                                        ___  ________    _____________



          F.2d  244, 245-46  (9th Cir.  1985) ("We  decline to  require any



          specific  verbal  formulation  to  ensure   compliance  with  the



          regulations governing denial of claims.").



                                      CONCLUSION
                                      CONCLUSION



                    For the  reasons stated  in this opinion,  the district



          court's grant of summary judgment to the defendants is affirmed.
                                                                 ________


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